April, 2015 update
Apologies to all for not keeping this page current. We have kept out Facebook page current, but we've let this one lapse. We haven't done more simply because Restore Louisiana Now has no staff and I have zero technical competence.
So it's past time to update you on the lawsuit filed by the Southeast Louisiana Flood Protection Authorit East against nearly 100 oil, gas, and pipeline companies over coastal land-loss. As you probably know, there were a few very small settlements last fall, trivial in the amount but important as precedents. Then we received very good news when a state judge threw out-- on four separate grounds-- the law which the legislature passed designed to kill the lawsuit. The attorneys are very confident the state supreme court will concur.
However, we also received a serious blow in February when a federal district court dismissed the case. The ruling was so flawed, however-- in fact, an attorney opposed to the suit told me laughed when he read the judge's opinion-- that we believe there is a very real chance the Fifth Circuit Court of Appeals will overturn the ruling. As one of the attorneys on the case put it, "This isn't a Hail Mary. It's more like going for a two-point conversion."
And there is a real positive that could come out of this: If the Fifth Circuit does rule in our favor, we'll be in a far stronger position than we were before.
Meanwhile, in other news, at this writing it does not look like there will be another attempt in the legislature to kill the lawsuit.
Finaly, below is an op ed I wrote for The Advocate a few weeks ago which, I hope, gives you a good sense of what's what and where things stand.
A Message from John
July 2, 2014
Colleagues and Friends,
No doubt many of you are wondering what's going on with the flood authority's lawsuit against numerous oil companies. I can assure you, It's alive!
That's the main message. Now for a little more detail:
As you no doubt know, the single bill (SB 469) which Jindal and the industry managed to get through the legislature was signed by the governor. Since it's now-- for the moment anyway-- a "law" it will henceforth be known as Act 544.
The attorneys will definitely challenge this bill on several grounds. Let me name just two:
First, Act 544 does prohibit "local government entities"-- except for parishes-- from suing over any oil-related damages in the coastal zone. However, a local government entity has a very precise legal definition, and that definition does not fit the flood authority. So the bill actually does not prohibit the flood authority from suing. That is a very strong argument that the attorneys will make. (Thank you Jimmy Faircloth, Jindal's favorite attorney, for this genius move in writing the bill; based on his track record in this and other cases apparently, Jimmy needs to go back to school.)
Second, a state court has already ruled that an unrelated law (about a hospital closure) just passed by the legislature is unconstitutional because its advocates violated procedural rules in passing it. They put the bill on the agenda for a committee hearing after 4:00 PM one evening and heard the bill at 9:00 AM the next morning. Exactly the same thing happened with SB 469/ Act 544-- only worse. Most of you will probably recall that SB 469 as originally written had nothing whatsoever to do with the lawsuit. The industry was attempting to move another bill, SB 531. But we had 531 killed in one committee, so they stripped everything out of 469 except the bill number and the title, shoehorned into it the core of 531, and got it heard in a different committee. So not only was proper notice not given, but 469 as it was heard was entirely different from how it was filed. And it gets even more egregious: forget the lack of notice-- even if you were physically in the room when the committee heard 469 you could not get a copy of the bill. This violates all sorts of notice and open meetings standards.
As I said, those are only two of the challenges the attorneys have. They're both pretty good ones. And they have others. Needless to say, the attorneys are happy to be fighting on the battlefield where the lawsuit belongs-- in a courtroom, and not in the legislature.
But that's not the only recent development.
On July 24 2013, the suit was filed in state court in Orleans Parish. The defendants-- the industry-- immediately removed it to federal court, and on December 18, 2013, attorneys for both sides argued before federal Judge Nannette Brown whether it should stay in federal court or return to state court. Judge Brown, incidentally, was appointed by Obama and has only served about two years on the bench. This past Friday, June 27, she ruled that the suit will stay in federal court.
What's that mean for the case?
The biggest positives: Judge Brown's 83 page opinion pretty much rejected all the technical arguments made by the defendants' attorneys, even though she kept the case. Also, by keeping it in federal court, the case is now entirely out of the political arena-- for those of you who don't know, in Louisiana judges are elected, so the industry can pressures state judges by choosing to fund either sitting judges or their opponents and so on. No such pressure works on the federal bench.
The biggest negative: No matter what happens in her court, the result will probably be appealed. And the 5th Circuit Court of Appeal is the most conservative appeals court in the country.
However, if the suit moves forward-- if Judge Brown finds that Act 544 does not apply-- then all those things I said in the past six months about settlements happening will come true. I firmly believe that will happen.
There's a separate issue on the horizon. Paul Kemp is a coastal scientist who sits on the Southeast Louisiana Flood Protection Authority East, and he supports the lawsuit. His term may have expired July 1, 2014. I say "may" because his appointment letter says it expires July 1, 2015. I don't want to get too far into the weeds here as to why the difference, and the Attorney General has been asked to issue an opinion. He probably will soon. If it's determined his term has already expired, that triggers the next battle-- over his renomination. There is a complex nominating process for the board with a special nominating committee, and it's possible that if the committee chooses to do so, it could keep Paul on the board whether Jindal wants him or not. In the recent past, the committee cooperated with Jindal, but several things have changed since then.
That's all for now folks. When something happens, I will give you another update.
Thanks for your support. And remember who helped us-- who helped you, if you live in Louisiana-- and who betrayed you when the next election rolls around.
All the best,
A Message from John
Is there a single person in Louisiana who believes the governor is putting the state's interest ahead of his personal ambition?
At last count 106 legal scholars warned that signing the bill would put at risk claims against BP. The attorney general, the president of Jefferson Parish, the New Orleans City Council, and others all called upon the governor to veto the bill. I think he signed it today because they were just the beginning of a broad chorus from around the state and he wanted to cut that off before that chorus became deafening.
And while there may be doubt whether this bill does or does not limits existing BP claims, there is no doubt that it affects future claims- - if, for example, a pipeline ruptures in the coastal zone.
John Barry - June 6, 2014
I want to thank you all for your help and support. This has obviously been a difficult and disappointing fight.
In terms of the legislature, let's not forget those who supported the idea of letting the courts decide-- and those who did not.
I find it astounding that legislators representing coastal areas-- and particularly legislators representing areas that were under water in 2005, such as Nick Lorusso from the New Orleans lakefront and Ray Garofalo from St. Bernard-- voted to kill the opportunity to gain billions of dollars for flood protection in their areas.
Considering that the next election coincides with the 10th anniversary of Katrina and Rita, their constituents might have flood protection on their minds. I look forward to reminding their voters of what Lorusso and Garofalo did.
I'm not sugar coating anything. It was a tough loss. But we do still have several rabbits and hats left, so although the legislative battle is over the war isn't. To quote the classic words of John Belushi in Animal House, "It ain't over until we say it's over."
A final request, find your legislator and thank him or her for their support and if they voted against us promise them that you'll remember next year. The vote is posted below:
|Burns, H.||Burns, T.||Burrell|
|Miller||Morris, Jay||Morris, Jim|
As far as me personally, I've been spending full time on this since before SLFPAE filed the lawsuit July 24, 2013. Just about a year. No one has paid me anything for it, so I'll have to step back and earn a living. That means I'll write another book. Anyone got any ideas?
All the best,
The record of yesterday's vote is listed below. A "Yay" vote supported limiting the authority of local entities and retroactively killing the SLFPA-E lawsuit. The Louisiana Legislators were elected to represent YOU, did they?
Vote NO on SB 469
Call your Representatives today!
SB 469 is being voted on in the House of Representatives this week! SB 469 is the final big effort by this year's legislature to undermine the authority of local entities, retroactively kill the Southeast Louisiana Flood Authority- East(SLFPA-E) lawsuit, and prevent oil and gas companies from being held accountable for the damages they have caused to our coast.
Louisiana's Legislators were elected to represent YOU not industry lobbyists. Please urge your Representative to vote NO on SB 469.
As Louisiana’s coast shrinks, a political fight grows
As Louisiana’s coastline shrinks, a political fight over responsibility grows (09:20)
Restore Louisiana Now is taking our case to the airwaves of the Lake Pontchartrain Basin. If 469 fails there will be no money to shore up the land bridge along Highway 90. It's eroding and all that holds the Gulf back from the Lake. CALL HOUSE LEGISLATORS TODAY. VOTE NO ON 469!
The Final Push
May 27, 2014
Seventeen bills were filed to kill the flood authority's lawsuit demanding that the oil and gas industry obey the law and repair the damage they caused to the coast. It looks more and more like we-- you-- have stopped sixteen of them.
But SB 469 could still prove lethal. The Louisiana House of Representatives will vote on it Thursday or Friday. The bill takes away the flood authority's right to sue, and it would dismiss the suit "with prejudice"-- meaning even if a future legislature gave these important rights back to the flood authority it could not reinstitute a similar lawsuit.
This is about safety-- protecting lives and property. There is an op ed online now at nola.com which will be in the print edition of the Times-Picayune Wednesday which explains how the lawsuit directly affects the safety of everyone anywhere near Lake Pontchartrain.
It also affects people all across the state. If you're getting this note, you probably already know that Attorney General Buddy Caldwell has publicly stated that because of the lawsuit oil companies have approached him about seeking a statewide settlement. That's what everyone wants. Get around a table and fix the problem, get some money flowing to help the entire coast. But if the legislature kills the lawsuit, the oil companies will walk away from the table and do what they've done for the last 50 years-- next to nothing.
We can win this fight, but it won't be easy. It's really up to you. If you contact your state representative, if you get your friends, your acquaintances, your neighbors, the barista in the coffee shop, the person who waits on you in the restaurant or rings up a sale in the hardware store, and even your enemies to contact their state representative, if everyone tells their representative to vote "No!" on SB 469, if everyone says they are watching this vote and will remember it come next election, then we will win.
As you've heard me say before, history doesn't just happen. People make history. You can make some history in the next few days.
SB 469 passed the House Committee on Natural Resources and Environment late this morning by a vote of 13-6.
A MESSAGE FROM JOHN BARRY: MAY 20, 2014
Congratulations! The House Civil Law Committee is deferring action on SB 547 and SB 553. This is good news. If Jindal and the industry had the votes in that committee, there would be no deferral. This is a long way from a final victory, but right now I'd much rather be where we are on these two bills than where they are-- and it's because you spoke up.
The industry filed seventeen bills to kill the lawsuit. Other than those two bills, there's only one other one left.
SB 469 takes away the legal causes of action of the Southeast Louisiana Flood Protection Authority East. It says the flood authority can't sue to enforce coastal regulations, even though the legislation creating the flood authority explicitly authorized it to address coastal issues.
Let's see if we can kill this bill in the House Natural Resources Committee on Wednesday. It will be difficult, its chairman Gordon Dove is in the oil business, but it can be done. The following representatives are on the fence or leaning no, but if you contact them-- especially if you live in their districts-- and if you get your friends, neighbors, and people past you on the street to contact them, if their constituents swamp them, then we can win.
Rep. Billiot, (504) 436-8929, firstname.lastname@example.org, Jefferson
Rep. Chaney, (318) 728-5875, email@example.com, East Carroll, Ouachita
Rep. Foil, (225) 342-6777, firstname.lastname@example.org, East Baton Rouge
Rep. Garofalo, (504) 278-6599, email@example.com, Orleans, Plaquemines, St. Bernard
Rep. Gisclair, (985) 798-7707, firstname.lastname@example.org, Jefferson, Lafourche
Rep. Harrison, (800) 935-2081, email@example.com, Assumption, Lafourche, St. Mary, Terrebone
Rep. Leopold, (504) 393-5649, firstname.lastname@example.org, Belle Chasse
Rep. Ortego, (337) 886-4687, email@example.com, Lafayette, St. Landry
If we lose in this committee, it's not over. We will make a push on the floor where right now we're only slightly behind-- but we have a good chance.
Let's do it.
These are the members of the House Natural Resources Committee. Please call today and tomorrow. Tell them to vote against SB 469. Tell them that big oil must be above the law in Louisiana.
|Armes, James K. (D)||Leesville||(337) firstname.lastname@example.org|
|Billiot, Robert E. (D)||Westwego||(504) email@example.com|
|Bishop, Stuart J. (R)||Lafayette||(337) firstname.lastname@example.org|
|Chaney, Charles R. (R)||Rayville||(318) email@example.com|
|Connick, Patrick (R)||Marrero||(504) firstname.lastname@example.org|
|Dove, Gordon (R) C||Houma||(985 ) email@example.com|
|Foil, Franklin J. (R)||Baton Rouge||(225) firstname.lastname@example.org|
|Garofalo, Raymond E. (R)||St. Bernard Parish||(504) email@example.com|
|Gisclair, Jerry (D)||Larose||(985) firstname.lastname@example.org|
|Guinn, John E. (R)||Jennings||(337) email@example.com|
|Harrison, Joe (R)||Gray||(800) firstname.lastname@example.org|
|James, Edward C. (D)||Baton Rouge||(225) email@example.com|
|Jones, Sam (D)||Franklin||(337) firstname.lastname@example.org|
|Lambert, Eddie J. (R)||Gonzales||(225) email@example.com|
|Leopold, Christopher J. (R)||Belle Chasse||(504) firstname.lastname@example.org|
|Morris, James (R) VC||Oil City||(318) email@example.com|
|Montoucet, Jack (D)||Crowley||(337) firstname.lastname@example.org|
|Ortego, Stephen J. (D)||Carencro||(337) email@example.com|
|Schexnayder, Clay (R)||Sorrento||(225) firstname.lastname@example.org|
The Almost Final Push
It may not seem like it if you read the stories of the last few weeks, but believe it-- we have a decent chance to kill all the bills that threaten the flood protection authority's lawsuit against the oil & gas industry.
Grassroots pressure-- your pressure-- has finally loosened up some of the votes against us. Now we need more pressure to break those votes free.
Jindal and the industry filed 17 bills against the lawsuit. Right now it looks like only three have a chance of passing. And to keep even that many bills alive, the industry and Jindal had to violate the rules of both the House and Senate.
I said before, history doesn't happen. People make history. You are making history.
We have a great chance to defeat two of the three remaining bills, SB 547 & SB 553, in the House Civil Law Committee, now scheduled to meet Tuesday. The industry and the governor are applying as much pressure as they can, but we look good in this committee. You are the only counterweight to their pressure. If you live in the districts of members of that committee please tell them to let the courts decide. Committee members are:
|Abramson, Neil C.||Chairman||98||D|
|Landry, Nancy||Vice Chair||31||R|
|Arnold, Jeffery "Jeff"||Member||102||D|
|Edwards, John Bel||Member||72||D|
|Gaines, Randal L.||Member||57||D|
|Garofalo, Raymond E.||Member||103||R|
|Jefferson, Patrick O.||Member||11||D|
|Miller, Gregory A.||Member||56||R|
|Shadoin, Robert E.||Member||12||R|
|Williams, Alfred C.||Member||61||D|
|Kleckley, Chuck||Ex Officio||36||R|
|Leger, Walt III||Ex Officio||91||D|
That leaves SB 469, which by twisting the rules the industry got assigned to House Natural Resources, which will hear the bill Wednesday. Nonetheless, we have a chance to win there. Again, if you live in the districts above let them hear from you. Especially if you live in Garofalo's or Schexnayder's district, let them hear from you. They're on both committees and both would vote against us right now. Chris Leopold in Plaquemines is also a key.
If 469 does get out of committee, we have a 50-50 chance of winning on the House floor. That battle will come the following week.
I've been to Baton Rouge almost every day. I'm tired. I'm sure you're tired, too, especially if you've already sent emails or letters or called. But if you want to win, you will exert more effort than ever. Contact your representative again. Get friends and neighbors and clerks in stores to do it. Get everyone on your email list to do it. It matters.
We`are so close we can taste it. Let's do it.
Citizens for 1 Greater New Orleans urges defeat of SB 553. Lives depend on flood authority independence! When voters statewide approved the Southeast Louisiana Flood Protection Authorities (SLFPAs) by an overwhelming 81 percent in the Sept. 30, 2006, constitutional election, they created two politically independent levee districts as political subdivisions and units of local government.
They voted to put public safety first, to create constitutional protection for two local-area flood protection authorities and to keep them out of politics (particularly, out of gubernatorial politics).
The political independence of these two regional flood protection authorities relies hugely on their status as political subdivisions. Under Louisiana’s Constitution, they are units of local (not state) government. They serve our metropolitan-area flood protection needs and are not controlled by the governor, as they were pre-Katrina.
Now, legislative assaults on their political independence seek to move them away from the protections of local government, treating them as state agencies subject to the governor’s control.
That’s not what Citizens for 1 Greater New Orleans fought for in 2006. That’s not what Louisiana voters approved when they passed the 2006 constitutional amendment. Read more »
URGENT ACTION REQUESTED: PLEASE CALL MEMBERS OF THE HOUSE COMMITTEE ON NATURAL RESOURCES AND THE ENVIRONMENT AND TELL THEM TO VOTE AGAINST SB 469. VOTE IS EXPECTED ON WEDNESDAY, MAY 21, BUT COULD CHANGE AT ANY TIME!
It is ambiguously worded and will erode the rights of parishes to file suit for violations of the Clean Water Act, the River and Harbors Act and the Coastal Zone Management Program. This bill was formerly Senator Brett Allain's SB 531, but became SB 469 through sleight-of-hand and transferred out of Senate Judiciary Committee A, where it would have been defeated, to the Senate Natural Resources Committee where it passed on a voice vote May 7.
|Bishop, Stuart J.||Vice Chair||43||R|
|Armes, James K.||Member||30||D|
|Billiot, Robert E.||Member||83||D|
|Chaney, Charles R.||Member||19||R|
|Foil, Franklin J.||Member||70||R|
|Garofalo, Raymond E.||Member||103||R|
|Guinn, John E.||Member||37||R|
|James, Edward C. "Ted"||Member||101||D|
|Lambert, Eddie J.||Member||59||R|
|Leopold, Christopher J.||Member||105||R|
|Morris, James "Jim"||Member||1||R|
|Ortego, Stephen J.||Member||39||D|
|Kleckley, Chuck||Ex Officio||36||R|
|Leger, Walt III||Ex Officio||91||D|
Last week, April 28-May 1, the Green Army with the sponsorship of the Louisiana Bucket Brigade, traveled across the coastal zone and south Louisiana visiting with communities where lives and properties have been compromised or destroyed by the callous disregard of the oil and gas industry. These communities included Bayou Corne, Lake Peigneur, Vermillion and Cameron parishes, Mossville, and Standard Heights in Baton Rouge. On Thursday evening, May 1, the tour rolled into Abita Springs to lend support to St. Tammany Parish residents who are fighting a permit that would allow Helios Energy the right to frack above the Southern Hills Aquifer. Moss Robeson, an 18-year old rider on the tour, prepared this documentary from the week's events.
It took nature 6,000 years to create the Louisiana coast, yet only 75 years for humans to destroy one-third of it. Already, 1,900 square miles of coastal lands have melted into the Gulf of Mexico, and that damage has put New Orleans and the entire region on the verge of collapse. The destruction of land is continuing, and if this area washes away, so will the economy and heart of the entire state -- and the nation will pay a price as well.
The oil industry is not the only party responsible for this destruction, but they are accountable for much of it. RLN will initially devote itself to preventing political interference in the lawsuit filed by the Southeast Louisiana Flood Protection Authority-East against 97 oil, gas, and pipeline companies for the destruction of the coast -- the region’s first line of hurricane protection.
The message of these lawsuits is simple; obey the law, keep your word and fix what you broke. According to a recent poll, 93% of coastal Louisiana residents say that oil, gas and pipeline companies, not taxpayers, should pay to fix their share of the damage to the coastal wetlands. RLN proudly stands with those residents.
Watch John Barry's speech describing the necessity of the lawsuit:
May 5, 2014
I'm tired. We're all tired. So is the other side. So far we have made the oil lobbyists work harder than they have ever worked. I'm dragging but I also see them dragging around the Capitol every day. They come up and complain to me about how hard they have to work.
You get to a point in a battle where everyone is tired. The one who wins that battle is the one who puts out just a little more effort.
So we're asking for another effort on your part-- and we need it right now.
Tomorrow afternoon the Senate will vote on a motion to send SB 469 to the Judiciary committee. SB 469 goes right for the jugular. It says the flood protection authority cannot sue the oil industry over damage to the coast, period.
If we win, it will be huge. If we win, the odds for winning the war shift in our favor.
Phone and email your senators. Tell them to let the courts decide. Send SB 469 back to the Judiciary Committee, where it should have been in the first place. And if SB 469 is voted on for final passage, vote to kill it.
If you're interested, here are a lot more details about this bill:
Talking Points for SB-469
With less than 24 hours’ notice Governor Jindal, backed by the oil and gas industry, proposed legislation that would preclude the constitutionally-mandated levee authority (the SLFPA-E) from pursing oil, gas and pipeline companies for damages they caused to Louisiana’s coast. The proposed SB 469 passed in committee: No notice. No consideration of the broad impact it would have on the survival of the Greater New Orleans area. Leadership should ask these questions and demand answers: Does the bill apply retroactively? Or does it apply only prospectively? If the oil, gas and pipeline companies named as defendants in the SFLPA-E lawsuit use the bill to kill the case against them, what will that mean for coastal protection in the greater New Orleans area?
1. SB-531 Set in Judiciary A. On Tuesday, April 29, SB-531 was on the agenda for a hearing in Senate Judiciary A. It was deferred at Sen. Allain’s request, likely because a canvas of the members indicated it would not pass.
2. SB-469 Set in Natural Resources. Late in the day on Wednesday, April 30, Sen. Allain proposed an amendment to SB-469, a bill authored by Sen. Adley. The amendment deleted much of SB-469 and substituted much of the language of SB-531. It added Sen. Allain as a co-author. This procedure is highly unusual and may violate the Senate’s Rules.
3. SB-469 Approved. Before the language to the amended bill could even be finalized, it was brought forward for a committee hearing in Natural Resources. Although Sen. Moorish and many of the people who testified objected to the short notice, the Committee heard the bill the next morning, Thursday, May 1. It was approved there and sent to the Senate floor.
4. SB-469’s Stated Purpose (Allain). Sen. Allain testified that he authored SB-531/469 because he “knew about the natural servitude of drain.” He further stated the SLPFA-E lawsuit’s reliance on Louisiana Civil Code articles on natural servitude of drain put coastal landowners at risk of liability. Coastal landowners aren’t sued in the case, and SLPFA-E has stated it will not add them. Sen. Allain isn’t a lawyer and may misunderstand the finer points of the law. Further, his comments as to the legal tenets and legal implications of the SLFPA-E lawsuit underscore why the law was referred to the Judiciary Committee in the first place.
5. SB-469’s Stated Purpose (Faircloth). Jimmy Faircloth testified that the bill would allow the oil companies to file exceptions and have the SLPFA-E’s lawsuit dismissed but that the rights of the parishes to bring lawsuits would be protected. He didn’t explain why such a dichotomy made sense as policy.
6. Retroactivity Raised, but Not Answered. Glad Jones asked whether the amended bill was intended to apply retroactively. Mr. Faircloth never answered this question. One difference between SB-531 and amended 469 is that 531 specifically stated it was retroactive whereas 469 doesn’t contain that language. The senators are entitled to know which it is: prospective or retroactive?
7. The Parishes Suits Have Different Scope. The lawsuit brought by SLFPA-E is designed to provide one thing – protection for the lives and property of taxpayers in the Greater New Orleans area from hurricane storm surge. The coastal lands protect the levees, and the levees protect the people, and the SLFPAE’s lawsuit is aimed directly at those goals. There is no other viable mechanism for obtaining this protection – not any state proposed alternative and not the parish lawsuits. The 28 separate parish lawsuits aim to enforce coastal use permits. But, the parish suits do not directly address land loss; they do not directly address hurricane protection; and they do not address at all the tens of thousands of acres of protective wetlands that were lost as a result of oil and gas activity between 1932 and 1978. Any restoration undertaken as a consequence of the parish lawsuits might result in some measure of hurricane protection, but hurricane protection is not the intent of those suits by any measure. Furthermore, in those parishes with separate levee districts, the parishes and the levee authorities have distinct responsibilities over distinct properties and, therefore, distinct claims and distinct damages. Last, but certainly not least, the cost of the post-Katrina repairs was over $15 billion, so it isn’t difficult to see that giving the oil companies immunity from such claims could saddle taxpayers with responsibility for many billions in additional expenses for problems caused by oil and gas activities.
8. Dismissals Are with Prejudice. If Faircloth’s prognosis is accurate about the exceptions, the SLPFA-E’s suit will be dismissed “with prejudice” which means that no suit can ever be brought on the same subject matter in the future.
9. Dismissal Forecloses Settlement. Attorney General Caldwell has suggested he has had discussions with the oil and gas industry about working out a settlement related to coastal litigation. Allowing the SLFPA-E’s lawsuit to proceed would only help in that effort.
10. Criticisms of Lawsuit Are Weak. The criticisms of the suit itself are weak:
a. The lawsuit is often described as employing a “shotgun approach.” It does not. The activities of each defendant are described by permit number, pipeline, well serial number, and/or right of way. Historical aerial photography shows the damage over time caused by the described activities.
b. The lawsuit and contract are often described as “illegal,” but they aren’t. LOGA and Sen. Adley have argued that the suit and contract are illegal since the suit was filed last summer. LOGA even sued to have it declared so, but lost. The LOGA/Adley position was found to be “frivolous.” The SLFPA-E can sue and be sued. Further, the statute creating the SLFPA-E afforded it powers to “establish ... erosion control measures, marsh management, coastal restoration, and other flood control works ....”
c. Adley and Allain have described the servitude of drain claim as novel and weak, but the theory has been on the books since the Digest of 1808. Other cases employ the same theory in similar circumstances and, importantly, the author of the Code revisions, Professor Yiannopoulos has endorsed the theory for this application.
d. Adley (and Garrett Graves, former CPRA director) often says the lawsuit wasn’t conceived in sunlight. But CPRA used exactly the same executive committee process as the SLPFA-E used in considering CPRA’s Corps suit, it is standard practice for public bodies to discuss litigation in executive session, and the SLPFA-E attorney contract has been with the House and Senate Transportation Committees since August of 2013.
e. Adley often confuses the discussion of retroactivity by saying that what the oil and gas did wasn’t illegal when they did it and that the SLFPA-E is applying new laws retroactively to the oil and gas industry. But this is wrong. Internal memoranda show that the oil and gas industry knew what the laws were and knew it was breaking them.
11. Interference with the Courts. The legislation interferes with the courts in contravention with the separation of powers delineated in the Louisiana Constitution, especially in Art. II, Sec. 2. These proposed laws would potentially affect the rights of parties in the currently pending SLPFA-E lawsuit and LOGA’s suit against the Attorney General – the suit LOGA just lost. Interfering with pending cases is something the legislature should be reluctant to do.
12. Potential for Unconstitutionality due to Due Process and Impairment of Contract Violations. The legislature cannot take away rights of private parties and these laws do that in several ways, including by purporting to terminate SLPFA-E’s contracts with its lawyers.
13. Generally Bad Policy to Give Rights to Some Person or Industry, But Not To Everyone. These laws would give special rights and immunities to oil and gas that aren’t widely applicable to all individuals and entities.
14. The Voters and Thought Leaders Don’t Want This. Polls and editorials by all major newspapers are against what the legislature is doing and are in support of SFLPA-E’s lawsuit.
|Senator Gerald Long (Chairman)||P.O. Box 151|
Winnfield, LA 71483
|Senator Rick Ward, III (Vice-Chairman)||3741 Highway 1|
Port Allen, LA 70767
|Senator R.L. "Bret" Allain, II||600 Main Street|
Franklin, LA 70538
|Senator "Jody" Amedee||2109 S. Burnside Ave.|
Gonzales, LA 70737
|Senator Norbèrt N. "Norby" Chabert||P.O. Box 2417|
Houma, LA 70361
|Senator Jean-Paul J. Morrell||6305 Elysian Fields Ave.|
New Orleans, LA 70122
|Senator Dan "Blade" Morrish||119 W. Nezpique Street|
Jennings, LA 70546
|Senator Page Cortez (Interim Member)||101 W. Farrell Road|
Bldg. 5, Suite 100
Lafayette, LA 70508
Click Here for earlier updates from John Barry